Questions Linger for Anthony Shore, Larry Swearingen

January, 18 2018

Houston serial killer Anthony Shore faces another death date, this one Jan. 18. Shore was originally set for execution in October, but that got halted by the Harris County District Attorney’s Office amid rumors he was planning to confess to another murder: the 1998 killing of Melissa Trotter. Except Larry Swearingen had been convicted of kidnapping, raping, and strangling Trotter in 2000, and by then was preparing for his own execution in November.

Assistant District Attorney Tom Berg said his office revoked Shore’s execution warrant at the request of Montgomery County D.A. Brett Ligon, who believed Shore was colluding with Swearingen. (He says a folder was found in Shore’s cell with information relating to Trotter’s death.) Berg said the Texas Rangers have since interviewed Shore, who admitted he had “nothing to do” with Trotter’s murder. Shore alleged he and Swearingen once contemplated conspiring, but had since “parted ways.” Berg, who says his office and Ligon’s have reviewed the interview, said Shore decided not to “take the fall” for his fellow inmate. Shore has exhausted his appeals; Berg said he’s unaware of any new attempts to stay Shore’s execution, and concluded that his case will see its “inevitable end” next Thursday.

Shore’s execution is just the beginning of a busy month.

Swearingen, however, had his November execution stayed due to a filing error, and has since been granted additional DNA testing. Unlike Shore, who confessed to killing four girls between 1986 and 1995, Swearingen has maintained his innocence. His supporters, including his lawyer James Rytting, say he was in a county jail for outstanding traffic warrants at the time of Trotter’s murder. The 19-year-old was last seen on Dec. 8, 1998, with Swearingen (who wasn’t arrested until three days later), but her body wasn’t discovered until Jan. 2. Rytting said forensic evidence suggests her body could not have been dumped in the woods until “a week or 10 days” after Swearingen was arrested.

Included in the evidence sent out for testing is Trotter’s rape kit, which was never tested and could exonerate Swearingen should analysts uncover another DNA profile. Samples of hair particles found on Trot­ter’s undergarments and the alleged murder weapon (a torn pair of pantyhose) will also be tested. The evidence was shipped out in December and testing will likely take four weeks.

Rytting was alarmed that the state had reissued an execution date for Shore. “They shouldn’t be putting the guy into the ground with these questions still around,” he said. He says two witnesses, with no connection to Swearingen, told the D.A.’s Office that Shore suggested to them that he was connected to Trotter’s murder. The information, Rytting said, would “sure as hell” make Shore a suspect had it been provided prior to Swearingen’s conviction. “It’s a type of incriminating statement the prosecution seizes on all the time,” he said. “You don’t get to wiggle out of it with an ‘Aw shucks, I was kidding.'”

Shore will likely mark the first state-sanctioned killing of 2018, and his is just the beginning. William Rayford is scheduled for Jan. 30, and John Battaglia for Feb. 1.


EXECUTED – ‘Tourniquet Killer’ set to be executed in Texas – Anthony Shore 6:28 p.m


JAN. 18, 2018

In his final statement, Shore, 55, was apologetic and his voice cracked with emotion.

“No amount of words or apology could ever undo what I’ve done,” Shore said. “I wish I could undo the past, but it is what it is.”

He was pronounced dead at 6:28 p.m. CST.

Texas’ “Tourniquet Killer” is set for execution Thursday. It would be the first execution under Harris County District Attorney Kim Ogg, a Democrat who oversaw the first year without an execution in the county for more than 30 years.

Death row inmate Anthony Shore.


The first execution of 2018 in Texas and the nation is expected to take place Thursday evening for Houston’s “Tourniquet Killer.”

Anthony Shore, 55, is a confessed serial rapist and strangler whose murders went unsolved in the 1980s and 1990s for more than a decade. With no pending appeals, his execution is expected to be the first under Harris County District Attorney Kim Ogg, a Democrat who took office last January and has said she doesn’t see the death penalty as a deterrent to crime.

Still, she has said the punishment is appropriate for Shore, deeming him “the worst of the worst.”

“Anytime a person is subject to government’s greatest sanction, it merits thoughtful review,” Ogg said through a spokesman Wednesday. “We have proceeded as the law directs and satisfied all doubts.”

Shore wasn’t arrested in the murders until 2003, when his DNA was matched to the 1992 murder of 21-year-old Maria Del Carmen Estrada, according to court documents. His DNA had been on file since 1998, when he pleaded no-contest to charges of sexually molesting his two daughters. After his arrest, he confessed to the murders of four young women and girls, including Estrada.

Between 1986 and 1995, Shore sexually assaulted and killed 14-year-old Laurie Tremblay, Estrada, 9-year-old Diana Rebollar and 16-year-old Dana Sanchez, the court documents said. He also admitted to the rape of another 14-year-old girl, but she managed to escape after he began choking her. The murder victims’ bodies were all found in various states of undress behind buildings or in a field with rope or cord tied around their necks like tourniquets.

Though he doesn’t argue that his client is innocent or undeserving of punishment, Shore’s lawyer, Knox Nunnally, said Wednesday that he was surprised Ogg continued to pursue the death penalty for Shore based on her previous statements on capital punishment. Ogg’s first year in office also coincided with the first year Harris County didn’t carry out an execution in more than 30 years.

“Many people in the death penalty community were expecting other things from her,” Nunnally said.

Though she has said the death penalty is “pure retribution,” Ogg told the Texas Observer last year that she still believes in it. But in two major death penalty cases that made their way to the U.S. Supreme Court, Ogg opted for reduced punishments.

After the high court ruled death row inmate Duane Buck should receive a new trial because an expert witness claimed he was more likely to be a future danger to society because he was black, Ogg offered a plea agreement in October to a sentence of life in prison rather than holding a new death penalty trial. The next month, Ogg asked the Texas Court of Criminal Appeals to reduce the death sentence of Bobby Moore, whose case had earlier prompted the Supreme Court to invalidate Texas’ outdated method of determining intellectual disability in death-sentenced inmates.

But for a “true serial killer” such as Shore, Ogg said in a July statement that he was “a person deserving of the ultimate punishment.”

Shore’s execution was originally set for October, but Ogg postponed it after Montgomery County District Attorney Brett Ligon requested a delay from her and Gov. Greg Abbott. Ligon was concerned that Shore might falsely confess to the Montgomery County murder of Melissa Trotter, potentially disrupting the existing death sentence for the man already convicted in Trotter’s murder.

“We knew that was not true, but, that said, we knew that if we didn’t investigate it, it would look like we ignored potential evidence,” Ligon said.

Ligon said that after Shore talked to Texas Rangers and his office, investigators were convinced that Shore was not responsible for Trotter’s death or any other open murder cases. Nunnally said Shore never confessed to Trotter’s murder.

Now, Nunnally says he thinks he’s done everything he can for Shore. He had hoped to ask for a delay if the U.S. Supreme Court elected to hear a case out of Arizona that questions the constitutionality of the death penalty as a whole, but the justices have yet to make a decision and don’t meet again until Friday — the day after his scheduled execution.

Shore’s execution will the be the first in 2018, following a years-long trend of fewer executions in Texas and across the country. Four other executions are scheduled in Texas through March.

Officials urging mercy for death row inmate convicted under ‘law of parties’ now include prosecutor

December 14.2017

There is no dispute over whether Jeffery Lee Wood ever killed anyone.

He did not. He didn’t pull a trigger, didn’t wield a knife, didn’t take any direct action that caused another person’s death.

But twice now, Wood, 44, has come within only a few days of being executed by the state of Texas. He was convicted under Texas’ felony murder statute, informally called the “law of parties,” after he waited outside in a truck while an accomplice robbed a Kerrville convenience store in 1996 — and ended up killing a clerk named Kriss Keeran.

A growing bipartisan chorus agrees that, while Wood was complicit in a crime, he does not belong on death row.

One of those voices belongs to the prosecutor who put him there. Last week, The Texas Tribune reported that Kerr County District Attorney Lucy Wilkehas joined a long list of Texas officials who want to see Wood’s death sentence reduced to life in prison.

In a letter co-signed by the Kerrville police chief and the district judge overseeing Wood’s appeal, Wilke — a young, relatively inexperienced prosecutor at the time of Wood’s 1998 trial — says life imprisonment is the appropriate punishment in this case.

Wilke’s change of heart is not based solely on misgivings over the law of parties used in Texas murder trials. She has also expressed concern over testimony supplied by forensic psychiatrist James Grigson — “Dr. Death” — whose methods and credentials were later called into question.

But her letter urging the Texas Board of Pardons and Paroles to recommend that Gov. Greg Abbott reduce Wood’s sentence to life in prison specifies that “the offender was not actually the person who shot the victim” as a factor in her request.Wilke’s letter reflects a fair and candid evolution of thought about appropriate use of the death penalty in Texas, an evolution she shares with many others.

Honest disagreement remains over capital punishment in this state. This editorial board has urged its discontinuance; many others believe just as strongly that it should be preserved.

But all thoughtful people can agree that the death penalty, if used, should be applied carefully, sparingly, and reserved for the “worst of the worst” offenders — a standard that Wood, while culpable, does not meet.

“At the time of the jury trial in this case, I was a newly licensed attorney with 13 months of experience … the decision to seek the death penalty was mine,” Wilke wrote. “Again, I now respectfully request that this offender’s death sentence be commuted to a capital murder life sentence.”

Unfortunately, in spite of strong bipartisan efforts, state lawmakers passedon an opportunity to reform the Texas statute regarding the law of parties’ use in capital cases during their most recent session. It’s an issue that must be revisited.

In the meantime, a growing number of voices that bridge the political spectrum is calling on Abbott to intervene in this case.

Abbott, sensitive to protecting his red-state bona fides, has not reduced a capital sentence to life since he took office in 2015. But the case of Jeff Wood would be a sensible and honorable place to start.

Texas leads the nation in executions, but its death row population is dropping

December 14, 2017

The number of inmates on Texas’ death row dropped again this year, continuing a decades-long trend.

The decline is caused largely by fewer new death sentences and more reduced punishments in recent years, according to end-of-year reports released Thursday by groups critical of the death penalty in Texas and across the country. But Texas still held more executions than any other state.

“Prosecutors, juries, judges, and the public are subjecting our state’s death penalty practices to unprecedented scrutiny,” said Kristin Houlé, executive director of the Texas Coalition to Abolish the Death Penalty, in the release of the group’s annual report. “In an increasing number of cases, they are accepting alternatives to this flawed and irreversible punishment.”

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which has supported death penalty practices in legal cases throughout the country, said he agrees that the decline is partially due to shifting attitudes among jurors and prosecutors, but added that death sentences are also down because there has been a drop in the murder rate nationwide.

“The support for the death penalty for the worst crimes remains strong,” he said.

There are currently 234 inmates living with death sentences in Texas, according to the state’s prison system. That number has been dropping since 2003. The death row population peaked at 460 in 1999, according to the Bureau of Justice Statistics.

Here’s how the death row population has changed over the last year:

Seven men were executed.

The same number of men were put to death this year as in 2016, which had the fewest executions in two decades. But even with its relatively low number, Texas was still the state with the most executions in the country. This isn’t unusual given that the state has put to death nearly five times more individuals than any other state since the death penalty was reinstated in 1976, according to the Death Penalty Information Center.

Texas accounted for 30 percent of the nation’s 23 executions in 2017. Arkansas was second in the country with four. Last year, Georgia put more people to death than Texas — the first time Texas hasn’t been responsible for the most executions since 2001.

Four more men got cells on death row.

One more person was sentenced to death this year than in 2015 and 2016, when only three men were handed the death penalty in each of those years.

The number of new sentences, which ranged in the 20s and 30s each year in the early 2000s, dropped in 2005 after jurors were given the option to sentence convicts to life without the possibility of parole as an alternative to the death penalty. Before then, if a capital murder convict wasn’t sentenced to death, he or she would be eligible for parole after 40 years. About 10 people in Texas were sentenced each year after that until the additional decrease in 2015.

Two men died while awaiting execution.

Joseph Lave and Raymond Martinez both died this year before they were taken to the death chamber, even though they had had extended stays in prison. Lave passed away more than 22 years after his murder conviction, and Martinez had lived more than 30 years with a death sentence.

Four men had their sentences changed from death to life in prison.

Two U.S. Supreme Court decisions this year have so far resulted in the reduction of three death sentences to life in prison. The high court ruled against Texas in the death penalty cases of Duane Buck and Bobby Moore.

Buck reached a plea agreement with Harris County prosecutors to change his death sentence to life in October after a February ruling by the court said his case was prejudiced by an expert trial witness who claimed Buck was more likely to be a future danger because he is black.

In Moore’s case, the justices invalidated Texas’ method for determining if a death-sentenced inmate was intellectually disabled and therefore ineligible for execution. Though Moore’s case has yet to be resolved (Harris County has asked the Texas Court of Criminal Appeals to reduce his sentence to life), two other men on death row with intellectual disability claims received life sentences after the ruling.

Another man this April received a new punishment hearing in a 1991 murder and pled guilty, landing four consecutive life sentences over the death penalty, according to the Texas death penalty report.

Nine men narrowly escaped execution — for now.

Executions were scheduled — then canceled — for nine men this year. Six were stopped by the Texas Court of Criminal Appeals in light of pending appeals, and one was stopped by a federal court, the report said.

One man, Larry Swearingen, evaded execution in November because of a clerical error, and convicted serial killer Anthony Shore’s death was postponed because prosecutors were concerned he would confess to the murder for which Swearingen was convicted.


Salvadoran Man on Texas Death Row Loses Supreme Court Appeal

December 11, 2017

The U.S. Supreme has refused to review an appeal from a 48-year-old Salvadoran man on Texas death row for the slayings of two Houston store clerks during an attempted robbery more than 17 years ago.

The U.S. Supreme has refused to review an appeal from a 48-year-old Salvadoran man on Texas death row for the slayings of two Houston store clerks during an attempted robbery more than 17 years ago.

The high court had no comment in its decision Monday in the case of Gilmar Guevara.

Attorneys for Guevara asked the justices to reverse lower courts’ rulings rejecting arguments that he’s mentally impaired and ineligible for the death penalty.

Guevara was convicted and sentenced to death for the fatal shootings of 48-year-old Tae Youk and 21-year-old Gerardo Yaxon. Youk was from South Korea and Yaxon from Guatemala.

Guevara, identified as the shooter, and two accomplices fled the scene in southwest Houston in June 2000 without any money.

He does not yet have an execution date.

Serial killer : Anthony Allen Shore EXECUTED 01.18.2018 6.28 PM


In his final statement, Shore, 55, was apologetic and his voice cracked with emotion.

No amount of words or apology could ever undo what I’ve done,” Shore said. “I wish I could undo the past, but it is what it is.”

He was pronounced dead at 6:28 p.m. CST.


Anthony Allen Shore (born June 25, 1962) is a convicted serial killer and child molester who is responsible for the slayings of one woman and three girls. He operated from 1986 to 2000, and was known as the “Tourniquet Killer” because of his use of a ligature with either a toothbrush or bamboo stick to tighten or loosen the ligature. The instrument was similar to a twitch, a tool used by farmers to control horses.

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Shore’s parents were both with the United States Air Force; he was born in South Dakota where his father was stationed. Because of his parents’ enlistments in the military, Shore’s family moved nine times before he entered high school. He has two sisters.[ Although he possessed much musical talent, he did not pursue a career in music, but instead became a telephone lineman. He married and had two daughters Tiffany and Amber, but later divorced and was given custody of his two young girls. He later married and again divorced.

Statement of Facts

Appellant confessed to committing four murders in which he attacked and sexually assaulted, or attempted to sexually assault his victims, an aggravated sexual assault that did not end in murder, and the sexual molestation of two children.

On September 26, 1986, appellant murdered fourteen-year-old Laurie Tremblay while attempting to sexually assault her. In discussing this crime, appellant stated that he was preoccupied with young girls and that he had met Tremblay by giving her rides on a semi-regular basis. During one of these rides, appellant, then twenty-four years old, became sexually aggressive and unhooked the fourteen-year-old’s bra. She demanded that appellant stop, and the two argued. Appellant hit Tremblay in the back of the head and then used a cotton cord to strangle her. According to appellant, the cord kept breaking, and he injured his finger while tightening the ligature; “I tried to make sure that she would never, ever tell anybody.” The strangulation left a knuckle impression on the back of Tremblay’s neck, and the cord itself left two distinct pressure lines. Appellant dumped the victim’s body behind a restaurant. The crime remained unsolved until 2003.

On April 16, 1992, appellant, at twenty-nine years old, gave a ride to twenty-year-old Maria Del Carmen Estrada, the victim in this capital-murder prosecution. Recounting the event, appellant stated that she “freaked out” when he made sexual advances toward her, but he persisted in his attack, using a pair of shears to aid in his attempt to rape her. He ultimately strangled Estrada by twisting a nylon cord around her neck and tightening it with a piece of wood. As in his first murder, appellant dumped the victim’s body behind a restaurant and left. When Estrada’s body was found, signs of trauma were apparent on her face. Her pants had been removed, her underpants and hose had been pulled below her pubic area, her shirt was open, her bra had been cut, and her hose appeared to be cut in the crotch. An examination revealed that Estrada’s vagina had a bloody contusion deep inside. The crime remained unsolved until 2003.

About a year and a half later, at thirty-one, appellant became infatuated with a fourteen-year-old student who was often home alone after school. On October 19, 1993, she came home to find appellant waiting for her. He was wearing baggy clothes, surgical gloves, sunglasses, and a bandana over his face. Appellant bound the girl’s hands with an electrical cord and wrapped her head in duct tape. He took her into the bedroom, took off her pants, and cut her panties off with a knife; appellant then raped the girl as she screamed and cried. He then began choking her, but she managed to escape. Before fleeing the home, appellant threatened that he would return and kill her and her family if she reported the crime. He also told her that he had been watching her and named her school and sports activities. A sexual-assault examination revealed that the victim’s hymen and anus were torn, and that semen was present. DNA recovered from that semen eventually pointed to appellant as its source. Appellant admitted to this crime, saying that he had watched the girl during his work as a “telephone man.” He admitted that he fantasized about her and wanted to rape but not murder her; this depraved desire, he believed, was proof that he could “beat the evilness” by possessing and controlling another human being without killing her. Again, the crime remained unsolved until 2003.

The next year, on August 7, 1994, appellant, at thirty-two years old, abducted, raped or attempted to rape, and killed nine-year-old Diana Rebollar. He recounted that he saw the child walking down the street while he was driving a van. He pulled into a parking lot and began talking to her. Noticing that nobody else was around, appellant grabbed Rebollar, threw her into the van, duct taped her hands and feet, drove behind a building, then attacked her. Her body was later found on the loading dock of a building, naked except for her black t-shirt, which had been pulled up to her armpits, and her vagina and anus were bloody. Appellant admitted to killing her by strangulation; a rope with a bamboo stick attached to it was found around Rebollar’s neck. This crime also remained unsolved until 2003.

On, or soon after, July 6, 1995, appellant saw sixteen-year-old Dana Sanchez at a pay phone; appellant was thirty-three. Appellant stated that Sanchez appeared angry, and he offered her a ride. Sanchez accepted the ride, but soon objected when appellant began touching her. She tried to evade him, but he pulled her into the back of the van and restrained her after she bit his chest. He then removed her clothes. Appellant claimed that he did not sexually assault Sanchez, but admitted that he did kill her. Sanchez’s decomposed body was found after appellant made an anonymous call to a television news station reporting that there was a “serial killer out there” and giving the body’s location and a detailed description of the victim. The nude body was found with a yellow rope wrapped around its neck; a toothbrush was twisted in the ligature with a knot. Like the other murders, this crime remained unsolved until 2003.

About two and a half years after killing Sanchez, appellant plead no contest to two charges of indecency with a child. The two victims were appellant’s children. Appellant was charged with sexually molesting his older daughter from the time she was in kindergarten until she was thirteen. She testified that appellant would touch her breast, vagina, and anus as she pretended to sleep and that “[appellant] would stand unclothed [at the doorway to her and her younger sister’s bedroom] and touch himself inappropriately.” Appellant also began molesting his younger daughter, and both girls eventually informed their aunt of the assaults. Appellant was arrested, and as a result of a plea agreement, he was placed on deferred-adjudication community supervision.

On October 17, 2003, about eleven and a half years after the Estrada assault and killing, Houston homicide detective Robert King forwarded evidence of the unsolved Estrada murder to Orchid Cellmark for DNA analysis. Appellant’s DNA profile, from the sample he had been required to give when he was placed on deferred adjudication for molesting his daughters and which was included in the CODIS data-bank, matched DNA found on Estrada’s body. Appellant was arrested for the murder. He confessed to that crime, as well as to the murders of Tremblay, Rebollar, and Sanchez, and the aggravated sexual assault of the fourteen-year-old student. The state sought a capital-murder conviction against appellant in the Estrada case. After the guilt phase of the trial, the jury found appellant guilty and, at the punishment phase, it learned of the three other murders and the aggravated sexual assault, as well as the details of appellant’s molestation of his two daughters. Additionally, the jury learned that appellant would frequently drug and choke his adult sexual partners and have intercourse with them while they were unconscious or semi-unconscious. The jury answered the special issues in favor of assessing the death penalty, and appellant was sentenced to death on October 21, 2004.


SHORE V. STATE, AP-75,049 (TEX.CR.APP. 12-12-2007)


For first time in more than 30 years, no Harris County death row inmates executed

December 6, 2017

For the first time since 1985, no Harris County killers will be executed by the state of Texas this year, a landmark shift for a county once known as the “capital of capital punishment.”

Despite a slight uptick in executions nationwide, Harris County’s one execution this year was cancelled after a desperate death row plot led to a last-minute stay for serial killer Anthony Shore in October. Two U.S. Supreme Court rulings spared two other inmates.

“This has been an important year in terms of death penalty litigation,” said District Attorney Kim Ogg. “I view it as a positive thing. I don’t think that being the death penalty capital of America is a selling point for Harris County.”

Nationwide, executions reached a high water mark in 1999, and Texas executions topped out at 40 the next year. But it’s Harris County courts that have kept the death chamber busiest, with 126 executions since the state resumed capital punishment in 1982.

“Harris County has always symbolized America’s death penalty because it has executed more people than any other county and — apart from the rest of Texas — more than any other state,” said Robert Dunham of the Death Penalty Information Center. “It is both symbolic and emblematic of the change in capital punishment in the United States. For the first time in a generation, the nation’s largest executioner has executed no one.”

STUDY: Conservatives’ distaste for death penalty sends support to 45-year low

In part, that’s due to the long-range impact of the Lone Star State’s introduction of life without parole as a sentencing option starting in 2005. Before that, jurors on capital murder cases had to pick between death and the possibility of eventual release.

But it’s also due to the more immediate impacts of court actions this year. In October, death row inmate Duane Buck was given a life sentence after the Supreme Court granted him a new hearing in light of testimony from an expert who told the jury that Buck was more likely to be a future danger because he is black.

Then in November, Harris County prosecutors asked for a life sentence for Bobby Moore, months after the Supreme Court determined that Texas did not properly consider whether he was too intellectually disabled to face execution.

Falling murder rates and changing political tides have also contributed to the decline in capital punishment.

“Perhaps the most important change is that the public is substantially less supportive of the death penalty than it has been at any time since 1972,” Dunham said, citing a recent Gallup poll. The research group’s October findings showed that 55 percent of U.S. adults support capital punishment for convicted murderers, a low not seen since March 1972.

Outspoken death penalty supporter Dudley Sharp blamed the drop on the length of time between sentencing and execution.

“At this point it’s more than doubled since the 1980s, which would dramatically lower the execution rate,” Sharp said.

Even without Harris County, Texas regained its spot this year as the busiest death chamber in the nation with seven executions. Nationwide, 23 prisoners were put to death — three more than the year before — amid an otherwise downward trend.

MOORE: Prosecutors ask for life sentence for Texas death row inmate Bobby Moore

A generation ago, it was a different story.

A year before Karla Faye Tucker’s execution grabbed national headlines amid the tough-on-crime efforts of the 1990s, Harris County saw 11 killers in 1997 executed. Tucker, the first woman executed in Texas since the 1800s, was convicted of a brutal pickaxe slaying; she blamed the killing on drugs.

The next execution in Texas is Jan. 18, when “Tourniquet Killer” Anthony Shore is slated to die by lethal injection.

Shore’s execution on Oct. 18 was halted at the last minute after he told investigators of an abandoned confession plot with fellow death row inmate Larry Swearingen, a Montgomery County killer whose execution was also delayed.

A handful of other Harris County killers who are nearing the end of their appeals process could potentially net 2018 execution dates, including Carlos Ayestas, a Honduran man convicted in a 1995 slaying. The court heard oral arguments in the case in October and is expected to offer a decision next year.

No new death sentences, however, were imposed in Harris County this year — Ogg’s first to helm the district attorney’s office.

“I think it reflects both the new administration and the new skepticism about the death penalty and life without parole all combined with a dash of Harvey,” said local defense attorney Pat McCann. “And then of course there’s the simply bizarre continuing tale of Mr. Shore and Mr. Swearingen and the frankly inexplicable turn of events there.”

Next year could be different, however.

“When you have an historic low one year it’s not surprising to see the numbers rise slightly the following year,” Dunham said.

Death row exoneree Anthony Graves lauded local prosecutors for their role in the shifting tides.

“Kudos to the administration for being out front on criminal justice reform,” he said. “Because this is what it is, this is what it looks like.”

Maslon gets inmate off Texas death row

December 5, 2017

Witness by witness, statement by statement, inkling by inkling, a pro bono team at Maslon put together a habeas corpus case that got its client off death row in a Texas prison.

Douglas Tyrone Armstrong was not exonerated of a murder he says he didn’t commit, but he will get a new punishment hearing and will be removed from death row, where he has been in solitary confinement for all but 10 hours per week for 10 years. He was represented by Maslon’s pro bono committee chair Julian Zebot, Catherine Ahlin-Halverson, Michael McCarthy and Nicole Narotzky. Many others were involved in the case during the 11 years the firm worked on the case.

The Texas Court of Criminal Appeals, in a 5-4 opinion, determined that Armstrong’s defense counsel failed to conduct a constitutionally adequate investigation of mitigating evidence. The lower court also found that the defense failed to investigate, but that Armstrong was not prejudiced thereby.

The team has brought other habeas issues that are yet to be resolved, i6ncluding Armstrong’s claim of actual innocence.

“Tyrone has consistently proclaimed his innocence,” Zebot said. His trial lawyers were ineffective at the culpability phase as well as the punishment phase — “essentially he didn’t get much of a defense at all.”

He added, “We are going to fight for the client’s complete exoneration.”

The eyewitness testimony changed several times during the process, shifting in a direction unfavorable to Armstrong, he said. Additionally, the physical evidence doesn’t match up to the rest of the evidence, he said.

Wiggins standard

The Texas court relied on Wiggins v. Smith, a 2003 Supreme Court opinion where the court said that the standard of review is whether counsel’s investigation was reasonable under prevailing professional norms, including a context-dependent consideration of the challenged conduct as seen from counsel’s perspective at the time. It’s unusual for a court to grant relief under Wiggins, Zebot said.

Maslon lawyers dug deeply into Armstrong’s history and presented additional evidence of his disadvantaged background and entirely new expert testimony with respect to his mental state at the time of the offense, not evidence that was essentially more of the same character of evidence presented at trial. A Wiggins claim is not barred by the presentation of some mitigating evidence by the trial counsel, if the habeas counsel provided new evidence that demonstrated a reasonable probability that at least one juror would have held out against the death penalty, the court said.

The most compelling evidence to the Texas court appeared to be the new mental health evidence, and it relied primarily on that to conclude that there was a reasonable probability of a different outcome had that evidence been available.

But to get to that expert testimony, the lawyers needed to develop more lay testimony, mostly from Armstrong’s family. They interviewed witnesses and were assisted by a mitigation investigator. They looked for school and medical efforts but most of them had been destroyed.

“The family was so brave in sharing their stories. They were willing to offer this really traumatic history to the experts and the court,” Ahlin-Halverson said. “You’re asking people to share extraordinarily painful personal history.”

“You could hear a pin drop when the family was testifying. It was absolutely riveting,” she said.

The lawyers and investigators worked to establish trust over time, Ahlin-Halverson continued. “The first time we met with the family members we didn’t learn everything. Every time we spoke with them we got a deeper and more comprehensive understanding.

“To me, the most important thing we did was stick with them, and be where we said we would be so they could learn to trust us.”

Critical to the success of the case is the strong internal team at Maslon.

“We had so many attorneys, paralegals and staff running around in different directions, gathering affidavits. The case was going to rise or fall on the strength of the people working on it,” Zebot said.

“It demonstrates Maslon’s commitment to pro bono. We literally spent thousands of hours,” Zebot said. It was also a significant financial commitment, he added.

History of abuse

The family member’s testimony included accounts of physical abuse endured by all the children, including Armstrong. Armstrong was frequently locked in an empty room for days at a time, with no food or access to a bathroom. The parents were alcoholics and both beat the children with some kind of tool. Armstrong was beaten in the head.

His siblings also learned to physically abuse him. Armstrong and his sister were the only siblings who had the same father, and he raped the sister, resulting in a pregnancy. There were other instances of sexual abuse in the family. Additionally, the parents spent all their resources on alcohol and never bought food for the children. The family moved constantly because the parents did not pay their rent. Armstrong was introduced to alcohol by his brother at the age of five.

Neuropsych evaluation key

The experts were Dr. Phillip D. Harvey, a clinical psychologist in the field of study and diagnosis of cognitive impairment; and Dr. Robert Lee Smith, a forensic psychologist and addiction specialist.

Harvey’s neuropsychological evidence was the “linchpin” of the court’s opinion, Ahlin-Halverson said. His diagnosis was borderline intellectual functioning and acquired dementia. The dementia was likely caused by substance abuse, repeated traumatic brain injury and extreme life stress, he said. Those symptoms were fully formed by the time of the murder for which Armstrong was convicted.

Smith diagnosed Armstrong with dysthymic disorder (long-standing depression), substance dependence and personality disorder-not otherwise specified. He attributed the dysthymia to environmental factors in Armstrong’s past.

The absence of psychological evidence was prejudicial, the court determined. The court could not determine that the state’s evidence would clearly outweigh the totality of the mitigation evidence, the court concluded.

Armstrong is incredibly grateful to his lawyers, Ahlin-Halverson said. He speaks of his love for his family often, she said.

At some hearings the judge has allowed Armstrong to greet and hug (unshackled) each of his family members, including his son. “That really brings it home, what he’s been through,” Zebot said.

“You’d have to have a heart of stone not to be moved,” Ahlin-Halverson said.

Texas Death Row Inmate’s Execution Postponed Over False Testimony


Juan Castillo was scheduled to die on December 14, 2017. He was supposed to be the last prisoner on death row to be executed in Texas this year.

But on November 29, the Texas Court of Criminal Appeals delayed Castillo’s execution and sent his case back to trial court to reexamine false testimony used to convict him. 

Castillo, 36, was sentenced to death for the 2003 murder and robbery of Tommy Garcia Jr. in San Antonio. Castillo, his then-girlfriend, and two others had tried to lure Garcia with sex, and then steal his money. When 19-year-old Garcia ran away, Castillo shot him.

During his trial, Castillo’s former bunkmate at the Bexar County Jail, Gerardo Gutierrez, testified that Castillo had confessed to the crime. But in 2013, Gutierrez signed an affidavit saying he had lied about the confession.

Gutierrez’s false testimony is prompting the Texas CCA to pause the execution and further review Castillo’s case.

It’s not the first time Castillo’s execution date has been called off.

Previously, his Sept. 7, 2017 execution date was postponed at the request of the Bexar County District Attorney’s office because some of Castillo’s lawyers living in Harris County were impacted by Hurricane Harvey, according to the Texas Tribune. Castillo also had a prior execution date set back in May, but the date was postponed after Bexar County prosecutors failed to give sufficient notice to the defense, according to the Houston Chronicle

Texas has executed seven death row inmates in 2017, two of which were in Bexar County.

At least two other executions have been delayed in Texas this year because of issues over testimonies. Back in October, Anthony Shore, known as the “Tourniquet Killer,” had his execution date moved to January after he told prosecutors he had falsely planned to take responsibility for a fellow inmate’s murder.

Duane Buck, a Harris County death row inmate, had his sentence reduced to life in prison after the Supreme Court granted him the right to a retrial because a prison psychiatrist had told the jury in his 1997 trial that Buck would be more dangerous in the future because of his race.

TEXAS – Prosecutor asks for current medical standards in death penalty evaluations

When determining whether someone with a death sentence has a mental disability, Texas has long used outdated standards partially created by elected judges. Now that those standards have been ruled unconstitutional, one district attorney wants the state to use a markedly different measuring stick: current medical science.

Harris County District Attorney Kim Ogg sent a brief to the Texas Court of Criminal Appeals Wednesday afternoon in the case of Bobby Moore, a man convicted in the 1980 shooting death of a Houston supermarket clerk. Ogg now says Moore is intellectually disabled, but the questions surrounding the prisoner’s mental capacity led to a March Supreme Court ruling that invalidated Texas’ method of determining intellectual disability for death row inmates.Justice Ruth Bader Ginsburg wrote in the court’s opinion that the state’s test created an “unacceptable risk” of executing intellectually disabled people, a practice deemed unconstitutional.

But while the ruling tossed out Texas’ old way of determining disability, it didn’t create a new one. Instead, cases of death-sentenced inmates who were deemed competent for execution under the old test were suddenly ripe for new litigation, and at least two men who had been on death row for decades had their sentences changed to life in prison — all while awaiting a final ruling on Moore’s intellectual capacity.

Ogg asked for Moore’s sentence to be reduced to life in prison, and her brief also asked Texas to create a new way of determining intellectual disability — one that sticks to the medical books.

“‘Unacceptable risk’ necessitates that the States should strictly adhere to the definitions of intellectual disability as contained within the most current versions of the clinical manuals,” said the brief.

She implored Texas to conform to the standards set by the American Psychiatric Association, similar to how Louisiana and Mississippi determine intellectual disability. If the Texas court accepts Ogg’s suggestion, death penalty experts say it will put Texas in line with the Supreme Court’s ruling and will put fewer Texas death penalty cases in front of the high court in the future.

“You don’t have the same systemic problems in states that are using medical definitions,” said Robert Dunham, executive director of the Death Penalty Information Center, a national organization critical of current death penalty practices. “We see persistent problems in states [that] have adopted standards that are clearly inconsistent with the contemporary medical standards or have created procedures that make it virtually impossible to prove intellectual disability.”

Dunham said in general that states have sought to conform to previous Supreme Court rulings, but others — Texas, Georgia, Missouri, Arkansas and Florida — have created hurdles for proving the disability. He said the best way for Texas to avoid future problems is to use existing medical standards.

The Texas Attorney General’s Office, which represents the state in federal death penalty appeals, and several district attorneys in counties where intellectual disability cases are in play did not return phone calls Thursday.

In 2002, the Supreme Court ruled that executing people with intellectual disabilities is unconstitutional under the Eighth Amendment, but it left it up to the states to determine how to qualify the condition. The legal definition of intellectual disability doesn’t have to fully match a medical definition, but it does have to be informed by the current medical frameworks, according to the court.

The Texas Court of Criminal Appeals created its own method two years later. Death penalty critic Judge Elsa Alcala wrote in a 2015 opinion that the test was only meant to be a temporary solution “in the absence of any legislative guidance.” The method found inmates facing execution intellectually disabled if their IQ was 70 or below. If an IQ was above 70 but close enough to be within a margin of error (the state put Moore at 74), the court would look at how well the person functioned in daily life by referencing 1992 medical guidelines and a controversial set of questions called the “Briseno factors.”

The factors included questioning if a neighbor or family member would consider the person disabled, the person’s ability to lie and the planning involved in the murder. In its March ruling, the U.S. Supreme Court said the Briseno factors strayed too far from medical-based frameworks.

“The [Court of Criminal Appeals] overemphasized Moore’s perceived adaptive strengths — living on the streets, mowing lawns, and playing pool for money — when the medical community focuses the adaptive-functioning inquiry on adaptive deficits,” Ginsburg wrote.

Chief Justice John Roberts agreed with the incorrect usage of the Briseno factors but wrote in a dissenting opinion that the court’s majority tossed the Texas court’s ruling without considering societal standards.

“The Court instead crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability,” Roberts wrote. “But clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment.”

It’s unknown when the Texas court will make a decision in Moore’s sentence or a new way to determine intellectual disability. In the meantime, the death penalty’s intersection with intellectual disability is up in the air.